Private sector housing enforcement policy

Introduction

The Minimum Energy Efficiency Standards (MEES) came into force in April 2018 and have been amended twice since that time. This policy document reflects the most recent up to date amendments made on the 15 March 2019.

The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015, as amended are referred to in this document as “the Regulations”.

The Regulations are designed to tackle the least energy-efficient properties in England and Wales – those rated F or G on their Energy Performance Certificate (EPC). The Regulations establish a minimum standard of EPC band E for both domestic and non-domestic private rented property, affecting new tenancies and renewals since 1 April 2018.

The amended Regulations introduced a new self-funding element for domestic landlords, which takes effect if landlords are unable to access third-party funding to improve any EPC F or G properties, they let to EPC E.

The Regulations set out the minimum level of energy efficiency for private rented property in England and Wales. In relation to the domestic private rented sector (PRS) the minimum level is EPC E.

Landlords who are installing relevant energy efficiency improvements may, of course, aim above and beyond this current requirement if they wish.

The minimum standard will apply to any domestic private rented property which is legally required to have an EPC, and which is let on certain tenancy types. Where these two conditions are met the landlord must ensure that the standard is met (or exceeded).

Landlords of domestic property for which an EPC is not a legal requirement are not bound by the prohibition on letting sub-standard property.

The minimum level of energy efficiency means that, subject to certain requirements and exemptions:

1. since 1 April 2018, landlords of relevant domestic private rented properties must not grant a tenancy to new or existing tenants if their property has an EPC rating of F or G (as shown on a valid EPC for the property); and
2. from 1 April 2020, landlords must not continue letting a relevant domestic property which is already let if that property has an EPC rating F or G (as shown on a valid EPC for the property).

Where a property is sub-standard, landlords must normally make energy efficiency improvements which raise the EPC rate to minimum E before they let the property.

In certain circumstances, landlords may be able to claim an exemption from this prohibition on letting sub-standard property Where a valid exemption applies, landlords must register the exemption on the PRS Exemptions Register.

The Regulations cross-refer to other Regulations, including the Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007, the Building Regulations 2010 and the Energy Performance of Buildings (England and Wales) Regulations 2012. Readers wishing to consult these related Regulations should ensure they look at the most up to date versions at www.legislation.gov.uk  

Enforcement of the Minimum Level of Energy Efficiency

Local authorities are responsible for enforcing compliance with the domestic minimum level of energy efficiency. They may check whether a property meets the minimum level of energy efficiency and may issue a compliance notice requesting information where it appears to them that a property has been let in breach of the Regulations (or an invalid exemption has been registered in respect of it).

Where a local authority is satisfied that a property has been let in breach of the Regulations it may serve a notice on the landlord imposing financial penalties.

The authority may also publish details of the breach on the PRS Exemptions Register.

The landlord may ask the Local authority to review the penalty notice and, if the penalty is upheld on review, the landlord may then appeal the penalty notice to the First-tier Tribunal.

A local authority may also serve a penalty notice for the lodging of false information on the PRS Exemptions Register.

The Council may check for different forms of non-compliance with the Regulations including:

• since 1 April 2018 whether the property is sub-standard and let in breach of regulation 23 (which may include continuing to let the property after 1 April 2020); and
• where the landlord has registered any false or misleading information on the PRS Exemptions Register, or has failed to comply with a compliance notice.

Since 1 April 2018, where the Council believes that a landlord may be in breach of the prohibition on letting a sub-standard property, or a landlord has been in breach of the prohibition at any time in the past 12 months, the Council may serve a compliance notice that requests information from that landlord which will help them to decide whether that landlord has in fact breached the prohibition.

The fact that the Council may serve a compliance notice on a landlord up to 12 months after the suspected breach means that a person may be served with a compliance notice after they have ceased to be the landlord of the property.

It is good practice, therefore, for landlords to retain any records and documents relating to a let property that may be used to demonstrate compliance with the Regulations.

Any notice that is served under the Regulations must be in writing and may be sent in hard copy or electronically. Where a notice is served on a corporate body it may be given to the secretary or clerk of that body if a suitably named individual cannot be identified. Where a notice is served on a partnership, it may be addressed to any partner, or to a person who has control or management of the partnership business.

A compliance notice served by the Council may request either the original or copies of the following information:

• the EPC that was valid for the time when the property was let;
• any other EPC for the property in the landlord’s possession;
• the current tenancy agreement used for letting the property;
• any Green Deal Advice Report in relation to the property; and
• any other relevant document that the Council requires in order to carry out its compliance and enforcement functions.

The compliance notice may also require the landlord to register copies of the requested information on the PRS Exemptions Register.

The compliance notice will specify:

• the name and address of the person that a landlord must send the requested information to; and
• the date by which the requested information must be supplied (the notice must give the landlord at least one calendar month to comply).

The landlord must comply with the compliance notice by sending the requested information to the Council and allow copies of any original documents to be taken.

Failure to provide documents or information requested by a compliance notice, or failure to register information on the PRS Exemptions Register as required by a compliance notice, may result in a penalty notice being served.

The Council may withdraw or amend the compliance notice at any time in writing, for example where new information comes to light.

The Council may also use the documents provided by the landlord or any other information it holds to decide whether the landlord is in breach of the Regulations.

Where the Council decides to impose a financial penalty, they have the discretion to decide on the amount of the penalty, up to maximum limits set by the Regulations.

The maximum penalties are as follows:

1. Where the landlord has let a sub-standard property in breach of the Regulations for a period of less than 3 months, the Local Authority may impose a financial penalty of up to £2,000 and may impose the publication penalty;
2. Where the landlord has let a sub-standard property in breach of the Regulations for 3 months or more, the Local Authority may impose a financial penalty of up to £4,000 and may impose the publication penalty;
3. Where the landlord has registered false or misleading information on the PRS Exemptions Register, the Local Authority may impose a financial penalty of up to £1,000 and may impose the publication penalty; and
4. Where the landlord has failed to comply with the compliance notice, the Local Authority may impose a financial penalty of up to £2,000 and may impose the publication penalty.

A local authority may not impose a financial penalty under both paragraphs (a) and (b) above in relation to the same breach of the Regulations. But they may impose a financial penalty under either paragraph (a) or paragraph (b), together with financial penalties under paragraphs (c) and (d), in relation to the same breach. Where penalties are imposed under more than one of these paragraphs, the total amount of the financial penalty may not be more than £5,000.

It is important to note that this maximum amount of £5,000 applies per property, and per breach of the Regulation. Given this, it means that, if after having been previously fined up to £5,000 for having failed to satisfy the requirements of the Regulations, a landlord proceeds to unlawfully let a sub-standard property on a new tenancy; the Council may again levy financial penalties up to £5,000 in relation to that new tenancy.

It is important to note that the maximum penalty amounts apply per property, and per breach of the Regulations.

Publication penalty (regulation 39)

A publication penalty means that the Council will publish some details of the landlord’s breach on a publicly accessible part of the PRS Exemptions Register.

The Council can decide how long to leave the information on the Register, but it will be available for view by the public for at least 12 months.

The information that the Council may publish is:

• the landlord’s name (except where the landlord is an individual);
• details of the breach; and
• the address of the property in relation to which the breach occurred; and the amount of any financial penalty imposed.

The Council may decide how much of this information to publish. However, the authority may not place this information on the PRS Exemptions Register while the penalty notice could be, or is being reviewed by the Council, or while their decision to uphold the penalty notice could be, or is being, appealed

Circumstances in which a penalty notice may be served (regulation 38)

From 1 April 2018 onwards, the Council may serve a penalty notice (relating to a financial penalty, a publication penalty or both) on the landlord where they are satisfied that the landlord is, or has been in the last 18 months:

• in breach of the prohibition on letting sub-standard property (which may include continuing to let the property after 1 April 2020) (see section 1.2.1);
• in breach of the requirement to comply with a compliance notice; or
• has uploaded false or misleading information to the Exemptions Register.

The fact that an enforcement authority may serve a penalty notice on a landlord up to 18 months after the suspected breach means that a person may be served with a penalty notice after they have ceased to be the landlord of a property.

The penalty notice may include a financial penalty, a publication penalty or both. The penalty notice will:

• explain which of the provisions of the Regulations the Council believes the landlord has breached;
• give details of the breach;
• tell the landlord whether they must take any action to remedy the breach and, if so, the date within which this action must be taken (the date must be at least a month after the penalty notice is issued);
• explain whether a financial penalty is imposed and if so, how much and, where applicable, how it has been calculated;
• explain whether a publication penalty has been imposed;
• where a financial penalty is imposed, tell the landlord the date by which payment must be made, the name and address of the person to whom it must be paid and the method of payment (the date must be at least a month after the penalty notice is issued);
• explain the review and appeals processes, including the name and address of the person to whom a review request must be sent, and the date by which the request must be sent; and
• explain that if the landlord does not pay any financial penalty within the specified period, the Council may bring court proceedings to recover the money from the landlord.

A further penalty notice may be issued if the action required in the penalty notice is not taken in the time specified.

As noted above, when the Council issues a penalty notice which carries a right of appeal, they must tell the landlord about that right of appeal.

Circumstances in which a penalty notice may be reviewed or withdrawn (regulation 42)

The Council may decide to review its decision to serve a penalty notice, for example when new information comes to light.

A landlord also has the right to ask the Council to review its decision to serve a penalty notice. This request must be made in writing.

The penalty notice must tell the landlord how long they have to make this request, and who it must be sent to.

When the Council receives the request, it must consider everything the landlord has said in the request and decide whether or not to withdraw the penalty notice.

The Council must withdraw the penalty notice if:

• they are satisfied that the landlord has not committed the breach set out in the penalty notice;
• although they still believe the landlord committed the breach, they are satisfied that the landlord took all reasonable steps, and exercised all due diligence to avoid committing the breach; or
• they decide that because of the circumstances of the landlord’s case, it was not appropriate for the penalty notice to be served.

If the Council does not decide to withdraw the penalty notice, it might decide to waive or reduce the penalty, allow the landlord additional time to pay, or modify the publication penalty, and must explain the appeals process and how financial penalties can be recovered.

Whatever they decide, the Council must inform the landlord of their decision in writing, and, should do so at the earliest opportunity.

Recovery of financial penalties (regulation 45)

If a landlord does not pay a financial penalty imposed on them, the Council may take the landlord to court to recover the money. In proceedings for the recovery of a financial penalty a certificate signed by or on behalf of the person with responsibility for the financial affairs of the Council and stating that payment of the financial penalty was or was not received by a given date will be accepted as evidence of the landlord’s non-compliance with the penalty notice.

The Council may not take the landlord to court to recover the money:

1. during the period in which the landlord could ask the Council to review their decision to serve the penalty notice, or while they are reviewing their decision to serve the penalty notice; or
2. during the period in which the landlord could appeal to the First-tier Tribunal, or while there is an ongoing appeal to the First-tier Tribunal, against the penalty notice.

The Domestic Private Rented Sector Minimum Standard

Appeals to the First-tier Tribunal (General Regulatory Chamber) (regulations 43 and 44)

The First-tier Tribunal (General Regulatory Chamber) is administered by Her Majesty's Courts and Tribunals Service and is the home for a range of rights of appeal.

Where a landlord asks the Council to review a decision to serve a penalty notice and, on review, they decide to uphold the penalty notice, the landlord may then appeal to the First-tier Tribunal against that decision if they think that:

• the penalty notice was based on an error of fact or an error of law;
• the penalty notice does not comply with a requirement imposed by the Regulations; or
• it was inappropriate to serve a penalty notice on them in the particular circumstances.

If a landlord does appeal, the penalty notice will not take effect while the appeal is ongoing. A landlord may also wish to seek legal advice as part of considering or making an appeal if they have not already done so.

Enforcement of the Energy Performance of Buildings Regulations 2012

Under the Energy Performance of Buildings (England and Wales) Regulations 2012 landlords and businesses are required to make energy efficiency of buildings transparent by using an energy performance certificate (EPC), to show the
energy rating of a building, when sold or rented out and recommendations on how to
improve energy efficiency.

Failure to provide an EPC when required means a person may be liable to a civil penalty charge notice and enforcement action may still be taken up to six months after any failure has been corrected.

The Council has the power to ask the seller or landlord to provide them with a copy of the EPC for inspection. If requested, a copy of the EPC must be provided within seven days or the person to whom the request was made may be liable to a penalty charge notice for failing to comply. A copy of an EPC can be requested at any time up to six months after the last day for compliance with the duty to make it available.

A fixed penalty charge of £200 may be issued for failure to comply in the following circumstances:

• on sale or rent the seller or landlord failed to make a valid EPC available free of charge to the prospective buyer or tenant at the earliest opportunity or to the person who ultimately becomes the buyer or tenant
• on marketing the seller or landlord did not commission an EPC before the building was put on the market or the person acting on their behalf (i.e. estate or letting agent) did not ensure that an EPC was commissioned for the building
• the seller or landlord or a person acting on their behalf did not secure an EPC using all reasonable efforts within seven days of the building being put on the market. An EPC must be obtained 21 days after the initial seven day period
• the seller or landlord or a person acting on their behalf did not include the energy performance indicator in any advertisement of the sale or rental in commercial media

If a penalty charge notice is issued but you believe it should not have been issued you can request a review from the local authority. If, after review, you are not satisfied with the outcome of the review you may within 28 days, beginning on the day after the notice is received from the local authority confirming the penalty, appeal to the county court.

A person with an interest in, or in occupation of, a building, must cooperate with any seller or landlord to enable them to comply with the requirement to make an EPC available. They must also allow access to the building to any energy assessor appointed by the seller or landlord. The penalty for obstructing an enforcement officer or for imitating an enforcement officer is a fine not exceeding level 5 on the standard scale, upon summary conviction